Los Angeles daily herald., 1887-08-30

cePuous W tne ,ule ana tnat tn1s case Is
Within the exceptions.
II IL true that there are adjudications of
tribunals OF high character sustaining de-
crees made upon motion and requiring for
these obedience, the performances of sub
$50 far as have examined them, and so far
| as they have been cited by plaintiffs counsel
herein) in which the mdin features of the de-
features are. merely subordinate, the per-
formance of subordinate acts to prevent
very great comparative damage.
The case in first Sawyer page 6S6, (being
in to show that the case at bar is within the
| exceptionl Is of the character last above
mentioned. 1t was case in which an in
junction was issued restraining defendants
stated Il Sawyer, 4s2): II think it very ap-
parent that the plaintiff has the prior right
to the water, and that it has
of defendants tunnel =. That the
water can be restored by building wall or
bulkhead across the tunnel It is case
in which the PLAINTIFFS ownership of the
marking: 'They would hardly have the
boldness to set up the right to take the water
from plaintiff" No only so, but 1t ap-
peared, Also that the water had been for a
long time in the possession of plaintiff, and
had been used for a public use, namely, to
supply water to Virginia City and Gold Hill.
The purpose of the decree was to prerent the
continuous taking of plaintiffs undisputed
property, but to accomplish such preven-
ton it was necessary only that the defend
ant perform subordinate act, namely,
erect a bulkhead across the tunnel. The
case is not an authority of any considerable
weight in favor of such order in that case
wherever the relief sought is mainly the
performance of substantive acts-the build
ing and operating f a railroad and the nego-
tiating with third party for a rate con-
tract over part of the line.
Again, If it be conceded that the case un
der discussion be within proper exception
to the foregoing, or that such rule does not
apply, would the granting of a mandatory
injunction or appointment of receiver
with the powers prayed for be a proper ex
ercise of wise discretion by the Court at this
stage of the proceedings,
Overlooking any question as TO wheth-
er plaintiffs, upon condition that the final
proofs at the trial should correspond with
the facts shown by the pleadings now on
file, would at the trial be entitled to the de-
cree prayed for. The reasons of the general
rule first herein suggested, should at least be
entitled to weight with the Court,
in its exercise of discretionary power as to
interloeutory or receiver and such reasons
together with the facts set forth in the plead
ings, indicate that proper discretion does
not call for such order at this time.
While it may be true that, in itself consid
cred, the tearing up of the road by defend
ant after only serenteen days default in ten
der OF delivery of the notes and deed, les
pecially since during that time the notes
and deed wer. in possession OF a trustee, to
whose selection defendant had agreed), may
be circumstance difficult for him to ex
cuse-particularly since such acts were COM
mitted by him after tender of the deed and
| notes had been made to him-nevertheess,
there is sufficient in the reasons set forth in
the afiidavits to justify the conclusion that
the question as to defendants right to re-
| fuse to construct and operate the road ac-
in nu 10 tho tor NJ no shnIlld
be determined only after hearing all the
| evidence, to be produced at the trial
In this connection, 1t may be mentioned
that as shown by affidavits on file, defend
| ant claims that the failure to deliver the
notes and deed upon his demand is due
| to the acts or inexcusable omission
of plaintiffs. Defendant claims that
the trustee was under control of
| fdavit shows that he was at that time such
| defendant, claims that the delivery could
have been made by the other plaintiffs, to
whose order it is urged the trustee was sub
| ject, Notwithstanding his sickness.
Itis also stated in an affidavit that one of
plaintiffs declared to defendant that the
notes and deed would not be delivered to
| defendant without the writren order of all
| of plaintiffs. Again ii is stated that the same
plaintiff informed defendant that two of
plaintiffs, namely Hynes and Fudacker,
refuse to pay these notes or to order deliv
| cry thereof to defendant.
/ 10eke anu OtneT circumstances sci fOfI N IN
| the affidavits a re sufficient TO warrant the
exercise of discretion against granting the
interlocutOry order, and to justify the con-
| clusion that before compelling defendant to
go forward and specifically perform his con-
| tract, all the evidence to be deduced at the
trial should be heard. Short as the period
| of alleged default was, the question of its
effect, together with the alleged control of
plaintiffs in causing this default, should not
| be determined on motion at this time, but
| the determination thereof should be de-
| ferred until time of trial.
While ii is true that the existence of an
| indemnity bond with collaterals does not in
| itself, under our statute, prohibit the grant
| ing of the decree prayed for, nevertheless
| the fact that plaintiffs are protected, to Il
certain extent at least, from loss by an in
demnity and securities, is a circumstance
entitled to some weight SO far as concerns
| the exercise, for plaintiffs protection,
of discretionary powers by the court,
and in the same connection may
| be considered the admitted solvency
of defendant, as is also the fact that it is by
no means entirely certain that the making
| of the interlocutory order at this time would
not work serious injury to defendant. To
carry passengers at the rate mentioned in
| the contract over the rate therein designated
| involves the making by defendant of a con-
| tract with an outside party, namely, the Sec
| ond Street Cable Road True il is defendant
should have agreed with that Company upon
| the subject before he entered into the con-
r.
| that he has an agreement with the Second
Street Cable Company defendant may have
| been thrown in default with that Com pany
| by reason of plaintiff s alleged default here
| in. Before granting interlocutory orders of
the character sought herein Courts should
not only see that there is good reason to be-
heve that without the order plaintiff is liable
| to suffer irreparable loss, but should also
consider whether there may not be improper
danger of loss to defendant from prelimi-
nary injunction or receiyership, against
which the bond of plaintiff, however large,
may not be just protection. Particularly is
this proper subject Of consideration when
| II is sought to work an entire change in the
situation and give plaintiff upon motion and
in advance of a full hearing all the relief
that they seek to acquire at the end of the
litigation after complete trial of the issues
THE FOREGOING PARTIAL RECITATION
OF the claims of the respective. parties is
| sufficient to show that there exists real
controversy between the parties to this suit
"a controversy which cannot be satisfact-
orally determined except upon the trial of
| this cause. The plaintiffs seek to now pro-
| cure in advance of the trial in substance the
entire relief to which they claim to be en-
| titled upon final trial and that relief so
claimed consists largely in affirmative acts
| to be performed by defendant and the affirm
alive substantive character of those acts
cannot be concealed by the mere form of the
order sought to enjoin defendants from run
| ming less than twenty trips with street cars
par day over a route on which no street
railway exists and thus indirectly compel
the construction of a street railway in so far
| as concerns the construction Of the line
precisely to secure them as though such
construction were directly commanded and
while injunctions mandatory in effect
though not 8, in form have often been
granted yet this is not a case in which such
injunction should be granted upon this in
terlocutory motion.
For the foregoing reasons the alternative
motion of plaintiff for an order Amounting n
| receiver or directing an injunction should
be denied and it is SO ordered.
W. p. GARDINER,
Superior Judge.
Dated August 20, 1887.
| Geo. X. Shatto, ]. s. Mailman, Dan McFar-
[ land. ]. W. Davies. Henry Mark, Joseph